Leif v Chak Yun Lo

[*1] Leif v Chak Yun Lo 2010 NY Slip Op 50569(U) [27 Misc 3d 1206(A)] Decided on April 8, 2010 Supreme Court, Queens County Lopresto, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 8, 2010
Supreme Court, Queens County

Pauline Leif, Plaintiff(s),

against

Chak Yun Lo and USA SEAFOOD, INC., Defendant(s).



13384/06



Attorney For Plaintiff:

Scarcella Law Offices

By M. Sean Duffy, Esq.

44 Church Street, Suite 150

White Plains, New York 10601

Attorney For Defendant:

Law Offices of Robert P. Tusa

By: Eileen Lobelson, Esq.

1225 Franklin Avenue, Suite 500

Garden City, New York 11530

Charles S. Lopresto, J.

The issue before the court is whether New York Insurance Law's Comprehensive Motor Vehicle Insurance Reparations Act ("No Fault Law") applies to the facts and circumstances of this case. At a pre-trial hearing, plaintiff's attorney argued that No Fault Law does not apply. The parties were invited to submit briefs on the issue and defendant declined.

It is undisputed by the parties that the motor vehicle accident occurred on Route 17 South [*2]in New Jersey and both plaintiff Pauline Leif's vehicle and defendant USA Seafood, Inc.'s vehicle, which was operated by defendant Chak Yun Lo, were registered in New York State.

New York Insurance Law § 5104 provides, in pertinent part:

(a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss. [emphasis added].

By its express terms, New York's No Fault Law applies only to "injuries arising out of negligence in the use or operation of a motor vehicle in this state." (Insurance Law 5104[a]). In this regard, it has consistently been held that the statute is not to be given extraterritorial effect. (Federal Ins Co v Barsky, 267 AD2d 275 [2d Dept 1999]; McHenry v State Ins Fund, 236 AD2d 89 [3rd Dept 1997]; Morgan v Bisorni, 100 AD2d 956 [2d Dept 1984]). Since New York's No Fault Law abrogates a common-law right, it must be strictly construed according to its express terms, "and as so construed, the section does not purport to regulate actions for personal injury arising out of the negligent use or operation of a vehicle outside this State." (Morgan v Bisorni, supra at 956.)

Plaintiff further contends that New Jersey's "Compulsory Automobile Liability Insurance Act," a statute which is analogous to New York's No-Fault Law, does not apply either and should likewise not be charged to the jury.

New Jersey's "Compulsory Automobile Liability Insurance Act" governs basic economic loss or threshold requirements for personal injury suits but is limited to "every owner or registered owner of an automobile registered or principally garaged in this State." (NJ Stat Ann, § 39:6A-3). " Under the statute a nonresident in a non-New Jersey registered or insured vehicle, injured in an accident in New Jersey * * * is not covered by or subject to the New Jersey no-fault law' [Government Employees Ins Co v Halfpenny, 103 Misc 2d 128, 133]." (Morgan v Bisorni, supra at 956.)

In light of the above, neither New York's No Fault Law nor New Jersey's "Compulsory Automobile Liability Insurance Act" apply to this case. Thus, plaintiff is not required to meet threshold requirements and the case shall proceed under the common law theory of negligence.

This constitutes the Decision and Order of the Court.

Dated: April 8, 2010_____________________________

Charles S. Lopresto, J.S.C.

Justice, Supreme Court